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It's been a while since we last spoke about Partition Actions in New York. Though, perhaps, not well known, they are an important tool for anyone who owns real property as a tenant in common or as a joint tenant. A good example would be where you, along with some relatives, inherit a house. The house is yours, and theirs; each of you has responsibilities, to maintain, and pay the expenses for, the house. Likewise, each of you can try to have the house sold so you can split the proceeds. If some of the other owners balk at this, you can go to court to force the sale and equitably split the proceeds; that is, you can bring a Partition Action.

The last time, we went through the basics: who can bring a partition action and what they have to do in order to succeed. This time, well take a look at a more interesting aspect of a Partition Action: What do you have to show to make sure the real property gets sold, rather than split down the middle? Put another way, how can you try to make sure you get the cash out of the land rather than just be left with a smaller piece of land?

That a Partition Action can, in fact, partition real property between its various owners, is made clear by one of the most interesting cases you could come across, at least for a history buff in New York who knows what the Rockaways look like now, which is nothing if not built up, and listens to how they were then, 117 years ago: as open and expansive as Promised Land in Amagansett or Hither Hills in Montauk, with nothing from the Atlantic to Jamaica Bay. To see them then would have been awesome; to the people who owned this little patch of the Rockaways, they definitely were worth fighting over.

In Chittenden v. Gates, 18 A.D. 169, 173-74, 45 N.Y.S. 768, 770-71 (2nd Dept. 1897), the court, on appeal, upheld the lower court's order directing that this pristine land be split between the owners, rather than sold. The quote from the case is rather long, but worthwhile reading in its entirety, both for the law and the picture it paints of the land as it then existed. If you notice, the rule then is much as it is now; the title of the statute might be different, but the intent remains the same: the first choice is to divide the property, equally:

Not everyone in New York knows what a Partition Action is. If you own real property, though, it's probably a good idea to learn.

It is not your everyday slip and fall, automobile accident, or even breach of contract case. Those are the things most people have heard of and the things many trial lawyers have tried. A Partition Action, though, is different. Though it's cloaked in legal terms, it's really about how to split up real property between two or more owners in the fairest way possible. That is why, most often, it involves selling the property and splitting the proceeds equitably.

The normal ingredients for a Partition Action are:

A piece of real property; it could have a house but it doesn't have to.

The real property has to be owned by more than one person. Think of an investment property: either an existing house that you want to rent out or that you want to flip, or fix up and sell for a profit; or even a vacant piece of land which you want to develop.

One of the owners has to want to sell. It could be for any of a number of reasons: maybe she's tired of being a landlord; maybe she wants to get her money out of the property and cash out; or maybe her co-owner just doesn't get along with her anymore.

Disputes involving adverse possession of property, or boundary line disputes, in New York always are contentious. As we have previously written, most people take umbrage when someone tries to take their property; property that they paid for, pay taxes on, and have a deed that says belongs to them. Similarly, most people who claim title to land through adverse possession truly believe it belongs to them and only bring claim to it when they find out someone else actually holds legal title to it.

Adverse Possession law in New York has been so contentious that major changes were enacted to it in 2008. Those changes generally make it harder for someone to obtain title to the land through adverse possession. They reflect the belief that obtaining title to land through adverse possession generally is not favored; in many ways it is not fair or equitable. The problem is that the change in the law complicated the issue. Does the new law apply to claims brought after the law was changed, just because they were brought, i.e., an action was commenced in court, after the law was changed? As with all good legal questions, there is a very definitive, straightforward answer, which just happens to be good for business: It depends.

What law applies depends on when the adverse possessor claims he gained title to the disputed property. For anyone who alleges that their claim to title vested prior to 2008, when the Real Property Actions and Proceedings Law §§ 501, 522, and 543, were amended, the law as it existed prior to 2008 applies to their claim. See Shilkoff v. Longhitano, 94 A.D.3d 974, 943 N.Y.S.2d 144, 145 (2nd Dept. 2012); Asher v. Borenstein, 76 A.D.3d 984, 986, 908 N.Y.S.2d 90, 92 (2nd Dept. 2010).

Boundary Line disputes often turn nasty. Two neighbors who live next to each other for years suddenly discover that the fence they each thought was on one property actually is on the other's land. The titled owner often will sue to quiet title; i.e., to have a court declare that the disputed land still belongs to her, and, possibly, for trespass against the neighbor to clear him off it. The neighbor, on the other hand, will assert that he has obtained title to the property through adverse possession. In other words, there's a fight, between one person who says the land is hers because she bought and paid for it, and the other, who says it's his because he always used it like he owned it. Even without more, and there always is more, this is a recipe for disaster, which often leads to allegations that one side has intentionally made the other's life a living nightmare. Even after the court determines who really owns the land, it's not uncommon for one party to sue the other for the intentional infliction of emotional distress.

Boundary line disputes are more common than you might think. States even get into them. Recently, the boundary between North Carolina and South Carolina has been recalculated or at least clarified. Homes and businesses, which thought they were in one state have found out that they are in the other. The boundary originally was set hundreds of years ago, by surveyors who used rudimentary tools including stone markers and markings on trees. Over time things got fuzzy; the trees died and the stones became overgrown with moss. The modern day surveyors often had to peel moss off stones and search land grant records but, now that they have re-set the line, the boundary is marked in high-tech GPS coordinates. Importantly, the states reportedly worked together to get the job done and soften the blow to the affected property owners. Not all boundary disputes, however, foster such a spirit of cooperation.

The whole concept of adverse possession breeds contempt between neighbors. In New York, there's a five part test you have to meet in order to gain title to land through adverse possession. Chances are, neighbors won't stay friends once they are done fighting it out. As we talked about previously, your occupation of the property must be:

(1) Hostile and under a claim of right, which really amounts to your belief that the property actually does belong to you rather than anyone else and you treat it as you would your own;

Think about how hard it is to stay civil with someone who's trying to take your land. Then realize that both sides believe the disputed land is theirs. Then remember that no matter what else happens, both sides still have to live next to each for years to come, unless one decides to sell, which itself often is traumatic. What comes to mind is trying to put a grease fire out with a bucket of water; it's a pretty sure bet that the only thing you'll do is spread the damage.

It's not uncommon for the bad blood between neighbors to spill over; even after one side wins and the other loses the disputed land, there will be allegations and recriminations on both sides. The years of dispute often will turn into a follow up lawsuit alleging that one side has intentionally inflicted emotional distress upon the other; through its actions in trying to get or keep the land; the names and the taunts it has directed at the other side; through its constant, vigilant harassment.

What everyone should remember is that a cause of action for intentional infliction of emotional distress is easier to allege than to prove. In New York, you have to establish:

1. Extreme and outrageous conduct;

2. Intent to cause or disregard of a substantial probability of causing severe emotional distress;

In our last article on the subject, we discussed how a person could come to own land in New York that she never purchased, through adverse possession. It is not an easy task, but it can be done. It takes a long time; ten years. All the while, she has to do it in such a way that the real owner would have a right to evict her. Whether it even should be possible, however, is another question.

The law of adverse possession is open to abuse. It has been used by squatters to try to justify their moving into seemingly vacant homes and claiming them as their own. Recently, a Texas man was convicted of burglary and theft because he moved into a $400,000.00 home that he apparently thought was vacant. The true owners, however, were merely out of town for several months seeking medical treatment. His defense was that he was making a legitimate effort to obtain title to the house through adverse possession. He had, after all, filed an affidavit with the local government making a claim for adverse possession, turned on the utilities, and posted no trespassing signs. The jury did not accept his defense, and he eventually was sentenced to 3 months in jail, ten years' probation, and ordered to pay $10,000.00 in fines.

The problem is more widespread than people might think. According to the same news reports, there had been a spate of approximately 60 adverse possession filings in the same county; and there were at least six additional trials scheduled in which the defendants were asserting adverse possession as a defense to similar charges.

Two of the most often disputed, and most important, elements of establishing an adverse possession claim in New York are hostility and exclusivity. Though we are not going to comment on any possible criminal charges, it is important to note that if the Texas man had tried to do the same thing in New York, he would have established both.

Hostility means that an individual asserts a right to the land, which is hostile to the rights of the legal, or true, owner. In essence, it means that the person making claim to the land must treat it like it is her own and does not belong to the real owner or to anyone else. This provides the key ingredient to obtaining title to land through adverse possession: The real owner must acquiesce in the open and obvious use of the land by another person as if the land actually did belong to that other person. Hostility, however, is negated by seeking permission from the real owner. See Estate of Becker v. Murtagh, 19 N.Y.3d 75, 968 N.E.2d 433 (2012).

Did you ever wonder how a person, or a business, could come to own a piece of land he never bought? Did you even know that it is possible? It can be done in New York, and, as shown by certain high profile cases, in other states as well, through an old legal doctrine known as adverse possession.

Recently, a Florida man tried to obtain title to a $2.5 million mansion in Boca Raton, merely by living there and paying the taxes and utilities on it. The property was foreclosed on in 2012 and remained vacant until he moved in sometime in July, when he filed an adverse possession claim. If he could live there for 7 years, unchallenged, and pay the bills and the real estate taxes, the property would become his under Florida law. Just yesterday afternoon, however, his dream came to an end. The owner, the Bank of America, went to court, sued him for trespassing, and had him evicted. In ending his dream, Bank of America demonstrated the core principal of an adverse possession claim; i.e., the true owner must be able to force the squatter to give up possession but, if he waits too long, the squatter gets to keep the property.